Bank of Ireland Mortgage Bank v Martin

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Noonan
• Judgment Date: 24 November 2017
• Neutral Citation: [2017] IEHC 707
• Docket Number: [2014 No. 610 S.]
• Date: 24 November 2017

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

JAMES MARTIN

AND

DEIRDRE MARTIN

DEFENDANTS

[2017] IEHC 707

Noonan J.

[2014 No. 610 S.]

THE HIGH COURT

Banking & Finance – Non-payment of mortgage loan – Bona fide defence – Sale of property – Appointment of receiver

Facts: The plaintiff sought an order for summary judgment against the defendants on the basis of non-payment of loan advanced by the plaintiff. The defendants objected to the assessment made by the plaintiff.

Mr. Justice Noonan granted an order for summary judgment to the plaintiff. The Court held that the defendants had failed to raise a bona fide defence in the present proceedings and there was no evidence in support of their case.

EX TEMPORE JUDGMENT of Mr. Justice Noonan delivered on the 24th day of November, 2017

1 This is an application for summary judgment in a simple debt claim on foot of a mortgage loan advanced by the plaintiff to the defendants pursuant to a loan offer of 25th January, 2005. The amount advanced was €95,000 secured by way of mortgage against the defendants' property. The defendants defaulted on the payments due and it would appear ceased all payments since August 2012. A letter of demand was issued on the 17th February, 2014, by the plaintiff's solicitors seeking repayment of the entire sum due. Ultimately a receiver was appointed and the property sold subsequent to the commencement of the proceedings so that the claim now outstanding is for the balance due after crediting the proceeds of sale. The first defendant has sworn a number of affidavits in this matter. No affidavit has been sworn by the second defendant.

2 The first defendant's affidavits are couched in depressingly familiar language proclaiming at the outset that he is a non individual living man. These affidavits run to many hundreds of paragraphs of extraordinarily prolix and obtuse averments. They were clearly drafted by some third party on behalf of the first defendant. The defendant's son, Seamus Martin, has made several attempts to act as an advocate on behalf of his parents in the guise of a McKenzie friend. He attempted to do so on foot of a power of attorney and by order of the 2nd November, 2015, the President of the High Court ordered that he was not entitled to be heard on behalf of the defendants either on foot of a power of attorney or otherwise.

3 The affidavits of the first defendant are replete with references to original wet ink documents and free floating quasi legal concepts that are advanced in the abstract without any attempt to connect them to any fact arising in the case. They are invariably accompanied by mantra like demands for the proceedings to be struck out. They are suffused with material that is not only frivolous and vexatious but in many instances plainly scandalous in making the most serious allegations against not only officers of the plaintiff but their solicitors and counsel which are entirely baseless.

4 Moreover the affidavits contain demands concerning any member of the judiciary who may hear the defendant's case in terms that are contemptuous. Thus at para. 34 of his first affidavit, the first defendant avers:

‘It is a truthful fact that we demand that any judge assigned to the hearing of the particulars of this matter who has or did have a pecuniary interest in the outcome of this matter to recuse him or herself from the matter to avoid any situation of conflict of interest or potential conflicts, any possibility of actual bias or indeed any perception or apprehension of objective or subjective bias. By pecuniary interest we mean not merely having an ordinary mortgage with a major bank but by being a shareholder of a or any bank, have a mortgage and or insurance policy of any kind and, or having significant personal borrowings with a or any bank which may or may not be in default or have borrowings relating to inter alia property or otherwise. We further demand that where the spouses of any judges assigned and or their partners or members of their families have had or have to date any borrowings of any kind with a or any bank relating to inter alia property or otherwise.’

Other contemptuous passages appear such as references to the court as ‘this alleged court’ – at para. 45 of the same affidavit. Both I and other judges have commented in the recent past on pressure groups and McKenzie friends who espouse this approach to litigation which is a...